Perez v. Del Monte Fresh Produce N.A., Inc., Slip Copy, 2010 WL 1406390 (D. Or. Jan 21, 2010) (No. CV. 09-1194-AC).

While recommending to remand the action to state court for not meeting the jurisdictional requirements, the Magistrate Judge in Oregon found that the “typicality” of claims in a class action relates to the underlying source of the claim, not the dollar amount of the damages. Thus, typicality of the claims does not mean that all the class members sought equal amount of damages. Subsequently, the District Court adopted the report and recommendation.

The plaintiffs, Caroline Perez and Maria Perez, filed a class action in Oregon state court against their past employer, Del Monte Fresh Produce, for violation of wage and hour laws and breach of contract. They sought damages for unpaid wages (including overtime, minimum and wrongfully deducted wages), statutory damages, and contract damages.  The plaintiffs sought to represent Del Monte employees working at its produce packing plant in Portland, Oregon, who were hired by Select Staffing, and who were subjected to a ‘Temporary Worker Agreement’ between Del Monte and Select Staffing.

After the plaintiffs filed their second amended complaint setting forth the amount of damages sought by them, Del Monte removed the action to the federal court. The plaintiffs then moved to remand, which the Court granted holding that Del Monte failed to present evidence that the damages alleged satisfied the federal court’s original jurisdiction or CAFA’s diversity jurisdiction over class actions.

First, the Court found that Del Monte failed to establish that the damages alleged by at least one named plaintiff exceed the $75,000 amount in controversy required under 28 U.S.C. § 1332(a).

In the complaint, Caroline Perez claimed damages totaling $14,439.77, and Maria Perez claimed damages totaling $22,521.40.  Accordingly, the Court remarked that if Del Monte established that the plaintiffs would incur more than $52,478.60 in attorney fees prosecuting this action, the amount-in-controversy requirement had been met.

The Court observed that the declaration offered by Del Monte based on past experience, was not sufficient to show that the plaintiffs would incur attorney fees in excess of $52,480 in litigating their claims. Instead, the Court looked into two identical class actions filed against Del Monte in the last three to four years, Simon-Zarate v. Del Monte, and Cortez Liborio v.Del Monte. In the settlement agreement in Simon-Zarate, the class counsel for the employees represented that counsel incurred a total of $44,558 in attorney fees, expenses, and costs. The Court observed that the violations alleged in this action had been litigated to a successful resolution in the recent past and that the experience gained and rulings achieved in the prior actions would aid the lawyers in litigating this action.  Thus, this fact was likely to reduce the attorney fees the plaintiffs would incur in this action, which further undermined Del Monte’s attorney fee argument.

Next, the Court found that Del Monte failed to establish that the aggregate amount in controversy exceeded $5 million as required under § 1332(d).

Based upon the fact that Select Staffing employed more than 1,800 people during the alleged class period, Del Monte contended that even if the 1,800 employees were entitled to only the two statutory penalties totaling $3,744 per employee, the aggregate amount in controversy equaled $6,739,200.

As Select Staffing provided employees to businesses in addition to Del Monte, the Court remarked that there was no indication that out of 1,800 people how many of them worked at the Del Monte plant. Additionally, the Court found that there was no evidence of how long each of the Select Staffing employees worked at the Del Monte plant or whether those employees were full-time or part-time.  Finally, there was no evidence how much each of the Select Staffing employers were paid.  All of this uncertainty prevented the Court from finding that the aggregate amount in controversy exceeded $5 million.

Finally, Del Monte argued that because the second amended complaint referred to the claims of the named plaintiffs as “typical of the claims of the class,” the Court should not look beyond the face of the complaint and merely multiply the number of class members by the amount of damages the named plaintiffs were seeking.

The Court, however, observed that the “typicality” of claims in a class action relates to the underlying source of the claim, not the dollar amount of the damages.  The test of typicality is whether other members have the same or similar injury, whether the action is based on conduct which is not unique to the named plaintiffs, and whether other class members have been injured by the same conduct. Thus, the Court stated that the proper interpretation of the term typical in this instance was that all members of the class had been injured as a result of Del Monte’s employment practices, not that all members of the class had been damaged to the same extent as the named plaintiffs.

Thus, the Court concluded that it was impossible to determine the actual amount in controversy without a discovery.